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Crowell v. Mass. Parole Bd., 74 N.E.3d 618 (Mass. 2017)

Court and Agency Decisions and Orders (including case law)

In an case challenging, in part, a parole denial on the basis that it violated the Americans with Disabilities Act (ADA), the Supreme Judicial Court of Massachusetts reversed the denial of parole for a prisoner with a traumatic brain injury (TBI), and sent the case back to the trial court for further consideration. Crowell alleged that the parole board had improperly considered his disability as a reason to deny parole, in violation of the ADA. While the Supreme Judicial Court sent the case back without deciding the merits of the ADA claim, the court's discussion of the legal standard for such claims in this case is helpful to persons whose HIV status is considered in a parole or similar criminal justice proceeding.

Crowell pled guilty to second degree murder and was sentenced to life imprisonment with the possibility of parole in 1962; he sustained a TBI in 1987. During a parole hearing in 2012, a parole board member noted Crowell’s TBI and his resulting “cognitive functioning [and] emotional functioning deficits.” The board denied parole because Crowell, “was unable to offer any concrete, viable release plan that could assure the [b]oard that he would be compliant in his parole,” and that he, “ha[d] not sought out or achieved the rehabilitation necessary to live safely in the community."

The court directed that, in revisiting its decision, the parole board should “consider whether there are risk-reduction programs designed to reduce recidivism in those who are mentally disabled.” It did not state whether the board would be required to develop such a program if they do not exist, although it stated that “providing an expert or other assistance to help . . . identify appropriate post-release programming,” would be considered a reasonable accommodation for a person with a disability under the ADA. The court also stated the parole board should explicitly address whether disability-based limitations affecting parole eligibility could be improved with reasonable modifications, and that it should make clear the extent to which the disability factors into its recidivism analysis.

Using this example, a person living with HIV who is seeking probation or parole for an HIV exposure offense might propose a "reasonable accommodation" such as linkage to effective antiretroviral treatment and HIV prevention/management assistance or similar support services to address concerns (however inappropriate) that the person will "reoffend" by again exposing partners to HIV.